The Federal Court, in hearing the appeal of former Selangor menteri besar Dr Khir Toyo, heard questions pertaining to the charge he's convicted - namely whether an MB or Selangor Development Corporation (PKNS) chairperson, is to be considered a ‘public servant’.

Lead defence counsel Muhammad Shafee Abdullah submitted that under Section 21 of the Penal Code, on the definition of a public servant, an MB should not be considered as such.

The senior lawyer, linked to Umno, also said as the charge seems to be preferred on Khir being the PKNS chairperson, rather than an MB and it was also wrong to term the post as a ‘public servant’ as PKNS is a corporate body and that the definition of a chairperson could not be considered as an officer in the PKNS as stipulated under Section 9 of the PKNS Enactment.

Shafee ( right ) said the prosecution did not amend the charge throughout the trial and in merely charging him as a PKNS chairperson, this had a prejudicial effect on Khir in not getting a fair trial, as his rights to call further witnesses in his defence were denied.

“On this point alone, my client should have been acquitted of the charge,” he said.

A five-member bench led by Chief Judge of Malaya Justice Zulkefli Ahmad Makinuddin is hearing Khir’s final appeal to set-aside the conviction of graft by a public servant, which resulted in the former Selangor MB being sentenced to 12 months’ jail.

The other judges are Federal Court judges Justices Ahmad Ma'arop, Hasan Lah, Jeffrey Tan Kok Wha and Ramly Ali.

The former Selangor MB arrived at about 8.50am along with his wife, Zahrah Kechik.

Besides Shafee, Khir is also represented by M Athimulan and Kamarul Hisham Kamaruddin, while deputy public prosecutor Mohd Masri Daud headed the prosecution.

Convicted of a lesser graft charge

The Selangor MB from 2000 to 2008 was charged at the Shah Alam High Court under Section 165 of the Penal Code with “abusing his position as a public servant to receive gratification”.

This is a lesser graft charge compared to charges under the Prevention of Corruption Act 1997.

Khir was convicted by the High Court in Shah Alam on Dec 23, 2011 of corruptly using his position as MB and Selangor State Development Corporation (PKNS) chairperson to obtain land and property at below the market price.

He was found guilty of obtaining for himself and his wife, Zahrah, two lots of land and a house at No 8 and 10, Jalan Suasa 7/1L, from Ditamas Sdn Bhd director, Shamsuddin Hayroni, at RM3.5 million - a much lower price than what the company had paid in 2004 at RM6.5 million.

Last year, the Court of Appeal upheld the conviction and the sentence.

Land was not valued at RM6.5 million

Shafee further submitted that when Shamsuddin bought the property for RM6.5 million, it was not based on the market value but on an emotional or aesthetic value.

He said in actuality, the price of the two lots of land should have been RM5 milion as the property bought included an Italian design bungalow and the furniture alone was priced at RM1.5 million in the agreement signed by Shamsuddin.

The senior lawyer told the five-member bench that when Khir bought the two plots of land there was no building on it but just skeletal structures on the land, as Shamsuddin had demolished the building.

“The evaluation on the land done by a valuation officer by the name of Irhami showed that it is valued at RM4.3 million. This valuer visited the land and took pictures of the property.

“This valuation never surpassed the RM4.5 million mark, and that the payment made by his client at RM3.5 million to purchase the two lands was adequate as there were no structures on it.

“However, the prosecution had relied on a report made by Trans Asia, which did not visit the site nor took pictures of it, at RM6.5 million, whereas there was no building there at that time,” he said.

Hence, Shafee said the apex court its should accept that Khir paid for the property at the right value.

Shamsuddin’s testimony inconsistent

Meanwhile, Kamarul Hisham warned the five-member bench to treat Shamsuddin’s testimony carefully as his credibility was in question. This follows after it was proven that Shamsuddin  had given an incorrect testimony when his statement was recorded by the Malaysian Anti-Corruption Commission, when he was charged.

The lawyer said Shamsuddin had in his testimony had suggested that Khir through his body language had asked him (Shamsuddin) to purchase the property at a price of RM6.5 million.

“How can body language by someone be considered as evidence,” he said.

However, Justice Tan and Justice Ahmad pointed out that Shamsuddin had testified at the High Court that Khir allegedly told the Ditamas director “Din kau belilah” (Din you purchase the property), when the property was bought for RM6.5 million.

Kamarul Hisham also said that Shamsuddin testified that Khir did not visit the property and that he only visited the property first before Khir, and this showed that the witness (Shamsuddin) had clear intention to buy the land.

He said that Shamsuddin’s testimony that he was obliged to sell the land to Khir as the latter was MB, shoud also be rejected by the court as this could be considered hearsay.

The hearing continues with the defence submission on Jan 19. Initially, Justice Zulkefli wanted to case to resume next Monday and Tuesday, during court vacation, but following possible problems of having all five of the judges together they fixed the continuation on Jan 19.